McClenon v. Livingston

Filing 17

Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 15 Findings and Recommendations on Case re: 3 Petition for Writ of Habeas Corpus, filed by Malcolm McClenon. (Ordered by Judge Sam A Lindsay on 10/30/2018) (ndt)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MALCOLM McCLENON, #1941538,
Petitioner,
v.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,1
Respondent.

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Civil Action No. 3:16-CV-2764-L

ORDER
This case was referred to United States Magistrate Judge Irma Carrillo Ramirez, who entered
the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”)
on July 27, 2018, recommending that the court: (1) deny Petitioner’s habeas petition, in which he
asserts grounds for relief based on Batson v. Kentucky, 476 U.S. 79 (1986), sufficiency of evidence,
ineffective assistance of counsel, and due process; and (2) dismiss with prejudice this action. The
magistrate judge further recommended that Petitioner was not entitled to an evidentiary hearing.
Petitioner filed extensive objections to the Report in which he contests the magistrate judge’s
findings and conclusions.
After carefully reviewing the pleadings, file, record in this case, and Report, and having
conducted a de novo review of that portion of the Report to which objection was made, the court
determines that the findings and conclusions of the magistrate judge are correct, accepts them as
1

The findings and conclusions entered by the magistrate judge designate Bryan Collier as the Respondent and
Director of the Texas Department of Criminal Justice. As correctly noted in Lori Davis’s answer to the habeas petition,
however, she “became Director of the Correctional Institutions Division” and “[was] automatically substituted as a party”
under Federal Rule of Civil Procedure 25(d)(1). Resp.’s Ans. 1 n.1 (Doc. 11). The docket sheet also indicates that
Respondent Brad Livingston was terminated as a party to this action on September 30, 2018.
Order – Page 1

those of the court, overrules Petitioner’s objections, and dismisses with prejudice this habeas
action.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the court denies a certificate of appealability.2 The court determines that Petitioner has failed to
show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states
a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this
determination, the court accepts and incorporates by reference the magistrate judge’s report filed in
this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing
fee or submit a motion to proceed in forma pauperis on appeal.
It is so ordered this 30th day of October, 2018.

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Sam A. Lindsay
United States District Judge

2

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:

(a)
Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final order, the
court may direct the parties to submit arguments on whether a certificate should issue. If the court
issues a certificate, the court must state the specific issue or issues that satisfy the showing required
by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A
motion to reconsider a denial does not extend the time to appeal.
(b)
Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to
appeal an order entered under these rules. A timely notice of appeal must be filed even if the district
court issues a certificate of appealability.
Order – Page 2